Citations
- 142 So. 2d 777
Full opinion text
HORTON, Judge.
Plaintiff bank seeks review of an adverse final decree in an action brought to determine its rights, obligations and duties as trustee under a trust agreement. Maurice Gusman, who was a defendant below, has filed a joinder in appeal.
The appellee Barbara Lou Rado Kerness is one of three beneficiaries of an irrevocable Spendthrift Trust created on December 30, 1952, by her grandfather, appellant Gusman. The other beneficiaries are Stuart Allen Rado and Jackie Lynn Gusman, both minors. The appellant bank is the trustee.
By its terms, the Gusman Trust set up subordinate Trusts A, B, and C, each having an individual beneficiary and contingent beneficiaries who were to receive the income and eventually the corpus of the trusts. The beneficiaries of each subordinate trust were, by the terms of the Gus-man trust, contingent beneficiaries of the other subordinate trusts. For example, if the individual beneficiary of Trust A should die, the corpus and income of said trust would be paid in equal shares to his surviving issue, and if no issue survived, the corpus and income of Trust A would become part of Trust B, and so forth. The appellee Kerness is the beneficiary of Trust A, and the appellees Stuart Allen Rado and Jackie Lynn Gusman are the beneficiaries of Trusts B and C, respectively. Trust A provided that the trustee should invest and reinvest the corpus and accumulate the income until appellee Kerness reached age 21, at which time the trustee was to make a distribution of the accumulated income and one-half of the corpus. The balance of the corpus was to be retained and reinvested by the trustee. The income earned by this remainder was to be paid to the appellee Kerness periodically until she reached age 30 when she would receive the balance of the corpus and Trust A would be terminated. The Gusman Trust provided that the settlor, appellant Gusman, or others might add to the corpus by depositing additional money or property with the trustee to be held and disbursed by it in the same fashion as if it were a part of the original corpus. It contained an additional provision authorizing payment to the beneficiaries, in addition to the regular payments designated in the trust, of such sums of money which in the sound judgment and discretion of the trustee were deemed advisable to promote their health, education and welfare.
On June 6, 1960, appellee Kerness reached age 21, at which time she was married and pregnant, and the appellant bank made a distribution to her of the accumulated income and one-half of the corpus of Trust A in accordance with its terms. On June 10, 1960, appellee Kerness executed a trust instrument, naming the appellant bank as trustee, which provided in part as follows:
“Barbara by the execution of these presents does hereby assign, transfer and convey over to the Bank, as Trustee, its successors and assigns, all of the property listed on Schedule A attached hereto and all of the property which she was entitled to on the 6th day of June, 1960 by virtue of the provisions of the December 30, 1952 Trust Agreement * * * IN TRUST, NEVERTHELESS, for the uses and purposes and pursuant to the powers set forth in said Trust Agreement of December 30, 1952 as same are applicable to Trust A. The property hereby transferred is to be held in said Trust A only.”
This instrument also contained a provision stating that the appellee Kerness retained no right to revoke or terminate the trust agreement or any of its provisions.
Subsequently the appellee Kerness made application to the trustee for an advancement under the health, education and welfare provision of the Gusman Trust, submitting a detailed financial statement to; illustrate the necessity for such an advancement. The trustee filed a bill of complaint-for declaratory decree, alleging doubt as, to whether it could, under the terms of the Gusman Trust, make the requested advancement,- inasmuch as the request showed on its face that the sums requested were for the living expenses of the appellee Kerness, her child and her husband. The complaint sought a declaration of the rights, obligations and duties of the trustee. Named as defendants were the appel-lee Kerness, appellant Gusman, and appel-lees Stuart Allen Rado and Jackie Lynri Gusman. In due course, a guardian a